Jharkhand High Court
Gayasuddin @ Gayasuddin Mian @ ... vs State Of Jharkhand on 5 April, 2005
Equivalent citations: 2005(2)BLJR851, 2005CRILJ4230, [2005(3)JCR501(JHR)], 2005 CRI. L. J. 4230, 2005 AIR - JHAR. H. C. R. 1788, (2005) 3 JCR 501 (JHA), (2005) 32 ALLINDCAS 393 (JHA), 2005 (2) BLJR 851, (2005) 2 EASTCRIC 477, (2006) 1 RECCRIR 360, (2005) 4 JLJR 394
Author: Amareshwar Sahay
Bench: Amareshwar Sahay
ORDER Amareshwar Sahay, J.
1. Heard the learned counsel for the petitioners and the learned counsel for the State.
2. The petitioner, an accused in a case registered under Sections 395 and 397 of the IPC in connection with Bhawnathpur PS Case No. 43 of 2004, has filed this application for grant of bail.
3. The petitioner is also an accused in Bhawnathpur PS Case No. 44/2004 registered under Sections 399/402 of the IPC and Section 25(1-b) a 26/35 of the Arms Act.
4. According to the petitioner, he was remanded in the present case, i.e. Bhawnathpur PS Case No. 43/2004 on 9.8.2004 and since the final form was not submitted by the Police within a statutory period and, as such, the petitioner filed an application for bail under the provisions of Section 167(2), Cr PC and the learned Chief Judicial Magistrate, Garhwa by order dated 8.11.2004, directed the petitioner to be released on bail under the provisions of Section 167(2) of the Cr PC. The petitioner filed bail bonds on 9.11.2004.
5. It appears that before the bail bonds were accepted, the charge-sheet was submitted on that day itself, i.e. 9.11.2004 and the learned Chief Judicial Magistrate did not accept the bail bonds and the petitioner could not be released on bail.
6. The petitioner thereafter, filed the bail petition before the Sessions Judge, Garhwa, which was heard and disposed of by the 1st Additional Sessions Judge, Garhwa by rejecting the prayer for bail by order dated 25.11.2004. Hence, this application.
7. From the impugned order it appears that the learned Additional Sessions Judge has found that on 8.11.2004 the charge-sheet was not submitted by the police and the petitioner filed a petition for bail under the provisions of Section 167(2); Cr PC. At this the learned Chief Judicial Magistrate directed the petitioner to be released on bail. However, on 9.11.2004 before the submission of the bail bonds, the charge-sheet was submitted against the petitioner and the cognizance was taken by the Court below. Lateron, on the same day on behalf of the petitioner bail bonds were filed and, thereafter, the case was called out but since nobody appeared on behalf of the petitioner' and, as such, the learned Chief Judicial Magistrate refused to accept the bail bonds, on the ground that the charge-sheet has already been submitted.
8. From the above fact it appears that before the bail bonds could be filed on behalf of the petitioner, the charge-sheet was submitted. The learned Additional Sessions Judge has referred the judgment of the Supreme Court in the case of Uday Mohanlal Acharya v. State of Maharashtra, reported in 2001 (1) JLJR 890. Paragraph 8 of the aforesaid judgment of the Supreme Court has been quoted by the learned Additional Sessions Judge wherein the Supreme Court has held that if the accused is unable to furnish bail bond, as directed by the Magistrate, then conjoint reading of explanation and proviso to Sub-section 2 of Section 167 the continued custody of the accused even beyond the specified period in paragraph (a) will not be unauthorized and, therefore, if during that period the investigation is completed and charge-sheet is filed then the so called indefeasible right of the accused would stand extinguished..
9. In view of the aforesaid decision of the Supreme Court the learned Additional Sessions Judge held that the petitioners were not entitled to be released on bail under Section 167(2), Cr PC. Thereafter, the learned Additional Sessions Judge considered the prayer for bail of the petitioner on the merit of the case and on the merit also the prayer for bail was rejected:
10. The learned counsel for the petitioners has submitted that the indefeasible right accused to the petitioners for being released cannot be extinguished only because of the filing of the charge-sheet by the police after the order for release on bail was passed by the Chief Judicial Magistrate under provisions of Section 167(2), Cr PC.
11. In view of the aforesaid decision in the case of Uday Mohanlal Acharya (supra) of the Supreme Court the argument of the petitioner cannot be accepted particularly on the facts and circumstances of the present case that after the order for release on bail was passed by the learned Magistrate the charge- sheet was filed by the police even before filling of the bail bonds by the accused petitioners and, therefore, the aforesaid decision of the Supreme Court fully applies in the facts and circumstances of the present case. Therefore, I hold that the petitioners are not entitled to be released on bail under the provisions of Section 167(2), Cr PC.
12. So far the merit of the case is concerned, considering the serious nature of allegation made in the FIR and the involvement of the petitioners in the alleged offence as well as the materials collected during investigation, which have been discussed in the impugned order showing complicity of the petitioners in the alleged offence, I am not inclined to grant bail to the petitioners. Accordingly, this application is dismissed.